M Workforce Pty Ltd

[2019] FWC 1141

[2019] FWC 1141

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

M Workforce Pty Ltd
(AG2018/3506)

DEPUTY PRESIDENT BEAUMONT PERTH, 25 FEBRUARY 2019

Application for approval of the MWPL South West Maintenance Enterprise Agreement 2018 – whether compelled to publish Agreement absent signatures – s 601(4)(b) – whether details of signatories should be suppressed – fear of reprisal for signatories of an Enterprise Agreement

[1] This matter concerns an application by M Workforce Pty Ltd (M Workforce) for the redaction of the signatures and details of signatories on page 20 of the MWPL South West Maintenance Enterprise Agreement 2018 (the Agreement). 1 Having considered the submissions and evidence of M Workforce, I am satisfied that the Commission is not compelled by s 601(4)(b) of the Fair Work Act 2009 (Cth) (the Act) to publish signatures and details of signatories. As such, I determined that the same would be removed from the published Agreement.

[2] M Workforce submitted that s 601(4)(b) required the Commission to publish an enterprise agreement as it was made, and not necessarily the signed version of the enterprise agreement as lodged with the application for approval. In this respect M Workforce relied upon the decision in The Australian Workers’ Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd (Oji Foodservice). 2

[3] In Oji Foodservice the Full Bench stated:

[64] … [t]he enterprise agreement document that is required to be lodged with the Commission under the FW Act, the Fair Work Regulations 2009 and the Fair Work Commission Rules 2013 (Rules) is the ‘signed copy of the agreement’ referred to in s.185(2). But for the reasons which follow, we are not persuaded that the agreement that must be published under s.601(4)(b) is that signed copy.

[65] Section 601(4)(b) is directed at the publication of the enterprise agreement that has been approved by the Commission under Part 2-4. The enterprise agreement which is approved, and which must be published, is not the document lodged with the Commission (ie the signed copy of the agreement referred to in s.185(2)) but rather is the enterprise agreement ‘as made’.

[66] An enterprise agreement is made when it is approved by a vote of employees (ss.182(1) and (2)). After an ‘enterprise agreement is made’, a bargaining representative must apply to the Commission for ‘approval of the agreement’ (s.185(1)). The application must be accompanied by a ‘signed copy of the agreement’ and any declarations required by the Rules (s.185(2)).

[4] It was the evidence of Mr Tyler Clews, Senior Industrial Relations Advisor (Mr Clews), that he was responsible for enterprise bargaining matters including the Agreement. 3 Mr Clews gave evidence that on 17 July 2018, employees to be covered by the Agreement were notified that the vote for the Agreement would take place on 26 July 2018.4 On that same day, those employees were emailed a copy of the Agreement, which had not yet been signed by a representative of M Workforce or an employee representative.5 A copy of the Agreement that was emailed to employees on 17 July 2018 was provided to the Commission.6 On 26 July 2018, the employees voted to approve the Agreement.7

[5] The evidence showed that the Agreement approved by a vote of employees on 26 July 2018 did not contain details of the signatories or their signatures. 8 Therefore, in accordance with the decision in Oji Foodservice, M Workforce submitted that the Commission was required to publish the Agreement absent the details of the signatories and their signatures.

[6] I do not agree with the submission of M Workforce that the Full Bench in Oji Foodservice adopted an approach that s 601(4)(b) required an enterprise agreement to be published absent details of the signatories. However, I am satisfied that the Full Bench considered that the Commission was not compelled by that section to publish those details if an enterprise agreement as made did not include the signatures and details of the signatories in the enterprise agreement.

[7] A copy of the Agreement was published on 29 January 2019, inclusive of the details of the signatories and signatures. It was not until the Agreement was published that M Workforce appeared to become aware that the details of the signatories and their signatures had been included in the published version of the Agreement. Consequently, M Workforce made the application to have the signatories’ details and signatures redacted.

[8] I do not consider that publication of the signatories’ details and signatures in the already published Agreement precludes their later removal. So much is clear from s 601(4) and the decision of the Full Bench in Oji Foodservice, where no such limitation was traversed. The Commission is obliged under s 601(4) to publish an enterprise agreement that has been approved by it under Part 2-4. The Full Bench in Oji Foodservice clarified that the obligation is therefore to publish the enterprise agreement ‘as made’. 9 In this case the enterprise agreement ‘as made’ was absent the signatories’ details and signatures. It is clear the Commission is not compelled to publish those details, although it may choose to do so.

[9] The Commission in this instance does not choose to do so. Accordingly, the signatories’ details and signatures will be removed.

[10] The Full Bench in Oji Foodservice stated:

It follows from this that if an enterprise agreement as made does not include the details of the signatories to the agreement, the Commission is not compelled by s.601(4)(b) to publish those details (although it may choose to do so). Further, in the event the signed copy of the agreement lodged with the Commission is to be published, the details of the signatories may be redacted and could also be the subject of an order under s.594(1)(c). 10

[11] Given the Commission has found that the Agreement ‘as made’ did not include the signatures or details of the signatories to the Agreement, it is unnecessary for the Commission to consider the application for an order under s 594(1); an application which M Workforce sought to rely upon in the alternative.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR705171>

 1   AE501426.

 2   [2018] FWCFB 7501

 3 Witness Statement of Tyler Clews [4].

 4 Ibid [5].

 5   Ibid.

 6   Ibid, Annexure TC-1.

 7 Witness Statement of Tyler Clews [6].

 8   Ibid [5], Annexure TC-1.

 9   Oji Foodservice [2018] FWCFB 7501,[65].

 10   Oji Foodservice [2018] FWCFB 7501,[68].